of the plaintiff therein, it would seem that a discharge thereof by him, without any judgment or verdict, is a sufficient termination of the suit; and that, for instance, if one maliciously causes another to be arrested and held to bail for a sum not due or for more than is due, knowing that there is no probable cause, and, after entering his action, becomes nonsuit or settles the case upon receiving part of the sum demanded, an action for a malicious prosecution may be maintained against him. Nicholson v. Coghill, 4 B. & C. 21; s. c. 6 D. & R. 12. Watkins v. Lee, 5 M. & W. 270. Ross v. Norman, 5 Exch. 359. Bicknell v. Dorion, 16 Pick. 478, 487. Savage v. Brewer, Ib. 453. In Arundell v. White, 14 East, 216, it was held that an entry in the minute book of the Sheriff's Court in London, opposite the entry of a suit in that Court, that it was withdrawn by the plaintiff's order, was sufficient evidence of a termination of that suit to sustain an action for malicious prosecution. . . .

But the present case does not require us to consider what disposition must be shown of a civil action which has once been entered in court, in order to constitute a final determination thereof. A plaintiff cannot be compelled to enter his action, and, until he does, may judge for himself whether he will proceed with it or not. If he does not enter it, it never comes before the Court, nor becomes the subject of any judgment, nor appears on its records, unless the defendant, upon filing a complaint at the return term, obtains judgment for his costs. If the defendant does not make such a complaint, the action is not the less finally abandoned and determined by the neglect of the plaintiff to proceed with it. Clark v. Montague, 1 Gray, 446, 448. Lombard Jewett v. Locke, 6 Gray, 233. The only cause assigned for the demurrer being that the declaration shows no determination of the former suit in favor of the defendant therein by a judgment of court, it must be overruled.

v. Oliver, 5 Gray, 8.

976. CARP v. QUEEN INSURANCE COMPANY

SUPREME COURT OF MISSOURI. 1907

203 Mo. 295, 101 S. W. 78.

APPEAL from Circuit Court, Christian County. ASBURY BURKHEAD, J. Action by S. Carp against the Queen Insurance Company and others. From a judgment for plaintiff, defendants appeal. Reversed, and remanded for new trial. See 92 S. W. 1137.

This is an appeal from the judgment of the Circuit Court of Christian County, wherein S. Carp recovered judgment against the Queen Insurance Company of America and others, $12,500, as damages for malicious prosecution. The action was commenced on January 17, 1903, in Lawrence County. A change of venue was granted the de

fendants to Green County, and the Circuit Court of Green County granted the plaintiff a change of venue to Christian County. The cause was tried in the last-named county at the August term of the Court, and resulted in a verdict for the plaintiff and judgment accordingly. The petition, in substance, alleges that the seven insurance companies, defendants herein, are each and every one foreign corporations engaged in the business of fire insurance in this State, and are liable to be sued herein; that the defendants, on or before the day of May, 1902, in the county of Lawrence and State of Missouri, falsely and maliciously, and without any reasonable or probable cause, procured and caused to be made an affidavit charging the plaintiff with the crime of arson in setting fire to and burning a certain stock of goods, wares, and merchandise in said affidavit described, and belonging to one H. Carp, situated in Lawrence County, Missouri, and on or about the same day caused the same to be filed in the Circuit Court of Lawrence County, Missouri, and by reason of said affidavit a State's warrant was issued, charging the plaintiff with the said crime of arson. The plaintiff states that afterwards, to wit, on the

day of May, 1902, he was by the consent and procurement of defendants arrested under said warrant, and was compelled to give a good and sufficient bond for his appearance at the next regular term of said Lawrence County Circuit Court. Plaintiff further states that after his arrest, to wit, on the day of November, 1902, the plaintiff appeared before the said Court of Lawrence County the day on which plaintiff was bound by law to appear to answer said charge of arson, and at said last above date the State of Missouri refused longer to prosecute plaintiff for said charge, and the plaintiff was by the said Circuit Court fully discharged from further appearing or answering to said charge of arson, and the prosecution of plaintiff for said crime of arson is now at an end. . . . Plaintiff asks that he may recover, in addition to his actual damages, $15,000 as punitive or exemplary damages, for both of which he asks judgment, and his costs.

...

The defendants filed a joint answer, which consisted of a special denial of each and every material allegation in the plaintiff's petition.

The material facts were there. On the 28th of May, 1902, John Musgrove, a resident of Aurora, made and signed an affidavit charging the plaintiff, S. Carp, with having maliciously and feloniously set fire to and burned said storehouse belonging to J. R. Woodfill, Jr., and the goods, wares, and merchandise therein situated, belonging to H. Carp, with the intent then and there to defraud, damage, and prejudice the Queen Fire Insurance Company and the other insurance companies named as defendants in this cause. . . . At the July term, 1902, the plaintiff was put upon his trial in the Circuit Court of Lawrence County on the charge of arson, and there was a mistrial, as the jury disagreed. ... At the November term, 1902, the civil case of H. Carp against one of the insurance companies on his policy of insurance on said stock

was tried in the Circuit Court of Lawrence County. On the trial of that case Miss Blanch Williams testified on behalf of the plaintiff, Carp, and gave testimony tending to prove that he left his home, on the night of the fire, after the fire-bells had been rung, and tending to contradict the evidence given in the criminal case tending to show that the plaintiff was down at the storeroom just before and at the time that the fire was discovered. . . . The prosecuting attorney had the stenographer read the testimony of the witness to him, and, after hearing it read, he nolled the criminal case. . . .

In the present action, plaintiffs now offered the testimony of Miss Blanch Williams (as contained in the bill of exceptions of H. Carp against the Queen Insurance Company), to which the defendants objected, because it was offered for the purpose of showing want of probable cause, and as Miss Williams was not a witness in the criminal cause at all, and her evidence was not known, either by the State or the defendant, until months after that trial, it could throw no light upon the proceedings had in the criminal case. The objections were overruled, and Miss Williams' testimony was read.

Martin L. Clardy, Edw. J. White, and Barger & Hicks, for appellants. MeNatt & McNatt, G. A. Watson, and H. H. Bloss, for respondent. GANTT, J. [after stating the facts as above]. . . . 1. As to the testimony of Miss Williams, we have already ruled that it was incompetent for the plaintiff in the first instance to offer that, because, in ascertaining the existence of probable cause upon which the defendants and the prosecuting attorney would have been justified in commencing the criminal prosecution, the defendants could not have been charged with a want of due diligence in not having ascertained it under all the facts and circumstances of the case.

2. But it is now presented in a different aspect. It seems to be the generally accepted doctrine in this country that a defendant in a case of malicious prosecution may show the guilt of the plaintiff by any evidence in his power, even though discovered after the prosecution began or after it ended. The law does not give this action to a guilty man. As said by the Supreme Court of Mississippi in Threefoot v. Nuckols, 68 Miss. 123, 8 South, 336:

"Surely no reason can be assigned, nor any respectable authority produced, to justify the shocking proposition that the guilt of a plaintiff in a suit for malicious prosecution may not be shown in any manner or by any proof, no matter how, or where, or when acquired. Reason and conscience revolt at the bare thought of a proven criminal recovering damages against the prosecutor."

Acting upon this established rule of law, the defendants asked and the Court instructed the jury that, if they believed that the plaintiff caused the fire which destroyed or injured the property described in the criminal action against him, then their verdict must be for the defendants, no matter who commenced or was connected with the

prosecution of that action, nor what their reasons were for commencing to prosecuting it. Thus the defendants tendered to the jury by their evidence and this instruction the actual guilt of the plaintiff, and not a mere question of probable cause; and the question now arises, Was it competent for the plaintiff in rebuttal to disprove the evidence offered by the defendants for that purpose, by showing that the witnesses for the defendants were either mistaken or had falsely sworn to his presence at the burning building at the times and places testified by them, by evidence that showed that he was at his home and did not start to the fire until after the fire alarms were sounded that night? . . .

When the defendants tender the issue of the actual guilt of the plaintiff, which, as we have seen, is a perfect defense, without regard to either malice or probable cause, can it be true that a plaintiff is powerless to rebut this issue thus tendered by the defendants by their evidence and by the Court in its instructions? We agree with the Supreme Court of Wisconsin that we can see no good reason for denying the plaintiff this right. Especially is this true when the evidence, as in this case of Miss Williams, is directed to the immediate time and place and facts covered by that of the defendants. And so, although this evidence was not, in our opinion, competent in chief for the plaintiff on the question of probable cause, because due diligence, under the circumstances, would not have disclosed its existence, yet, when the defendants and the Court tender the issue of plaintiff's guilt, we think it was perfectly competent in rebuttal to disprove the guilt of the plaintiff. . . . The judgment is reversed, and the cause remanded for a new trial, in accordance with the views herein expressed.

Fox, P. J., and BURGESS, J., concur.

977. HALBERSTADT v. New YORK LIFE Ins. Co. (1909. 194 N. Y. 1, 86 N. E. 801.) HISCOCK, J. . . The appellant fled from Mexico before the warrant could be served on him for the purpose of avoiding service, and remained out of the country and beyond the jurisdiction of the Court for such a length of time that the criminal proceeding was finally dismissed, presumably because prosecution was not and could not be carried on. The question is whether a dismissal or a discontinuance of a criminal proceeding under such circumstances is that kind of a termination which will support an action for malicious prosecution. If it is, the answers are bad; otherwise, not. While it is elementary that a criminal proceeding must be terminated before an action for malicious prosecution can be begun, there has been much discussion of the nature of this necessary termination. The best idea of what is essential may be gathered by reference to some pertinent authorities. . . .

From all of these authorities, added to others which are more familiar, I think two rules fairly may be deduced. The first one is that, where a criminal proceeding has been terminated in favor of the accused by judicial action of the proper court or official in any way involving (1) the merits or propriety of the proceeding, (2) or by a dismissal or discontinuance based on some act chargeable to the complainant, as his consent or his withdrawal or abandonment of his prosecution, a foundation in this respect has been laid for an action of malicious

prosecution. The other and reverse rule is that, where the proceeding has been terminated without regard to its merits or propriety by agreement or settlement of the parties, or solely by the procurement of the accused as a matter of favor or as the result of some act, trick, or device preventing action and consideration by the Court, there is no such termination as may be availed of for the purpose of such an action. The underlying distinction which leads to these different rules is apparent. In one case the termination of the proceeding is of such a character as establishes or fairly implies lack of a reasonable ground for his prosecution. In the other case no such implication reasonably follows. Townsend on Slander, No. 423.

When we apply these rules to the defenses which have been pleaded, it is evident that they sufficiently allege a termination of the Mexican proceeding which is not of a character to sustain this action, and ought not to be. That proceeding came to a dismissal and end, not because of any judicial action in favor of the accused for lack of merits or because of a withdrawal or abandonment of it by the prosecuting party, but simply because the defendant therein succeeded in escaping from the country and eluding the jurisdiction of the Court and thereby preventing a prosecution.

APPEAL from Mahaska Circuit Court. Friday, December 14. The plaintiffs in their petition aver, in substance, that they leased from the defendant certain coal land, with the right to mine the same from October 12, 1871, to January 1, 1878; that they spent a large amount of money in digging entries and shafts; that the defendant maliciously and without probable cause caused an action of forcible entry and detainer to be commenced before a justice of the peace, in which action he obtained judgment for possession, and upon the issuance of a writ was put into possession; that afterwards upon appeal the judgment of the justice of the peace was reversed; but that the plaintiffs not only lost the use and profits of the mine during the time they were kept out of it, but that defendant permitted the water to remain in the mine, and took out certain timbers, and by reason thereof the mine caved in, and the plaintiffs' leasehold interest was destroyed. They ask damages for the loss of the use and profits of the mine during the time they were kept out of it, and also for the permanent injury done to their leasehold interest. Judgment for $1,300. Defendant appeals. Crookham & Gleason and Lafferty & Johnson, for appellant.

John F. Lacey and M. E. Cutts, for appellee.

ADAMS, J. Error is specifically assigned upon the fifth instruction, which is in these words: "The transcript of the record of the trial before the justice of the peace, which has been introduced in evidence, shows there was a trial on the merits, and a verdict and